Area of Law: Criminal Law
Answer # 1856
What to do if you are charged with domestic assaultRegion: Ontario Answer # 1856
If you are arrested, you are not free to go, but you do not have to tell the police anything. Anything you do say to the police can be treated as evidence in the case against you. However, you are not allowed to lie to the police. If you lie, you may be charged with obstructing justice, obstructing a police officer, or public mischief. If you are arrested, you have the right to speak to a lawyer, and if you want to call one, the police must provide you with a telephone. Also, the police must tell you about your right to free legal services as soon as possible. If you are charged with a criminal offence such as assault, it is important to contact a criminal defence lawyer.
If you are arrested, try to stay calm and be polite. Do not physically resist arrest, and follow whatever directions the police give you. Do not fight with or yell at your spouse.
In cases of domestic assault, the police have the authority to decide if anyone will be arrested and charged. The police may decide not to arrest anyone, to arrest one partner, or, in some cases, the police may decide to charge both partners. If the police decide to lay charges against an alleged abuser, the victim does not have the right to have the charges dropped, even if they called the police in the first place. Only the police and the Crown Attorney can decide whether the charges will go forward to trial. Upon receiving a call about domestic assault, police may arrest the alleged abuser and make them spend the night in jail. A judge will likely release the alleged abuser until it is time for their case to come before the court, unless they have a serious criminal record. However, judges very often make it a condition of the release that the abuser move out of the family home and not contact their partner. This is called a no-contact order. Both direct communication, such as going and talking to your spouse in-person, and indirect communication, (such as phone calls, emails, and text messages) are prohibited. The no-contact order may also include restrictions on contact with children if they have been exposed to the violence. If you receive a no-contact order, it is very important that you do not breach it because you may then be charged with another criminal offence.
Diversion of domestic assault charges
An experienced criminal defence lawyer may be able to have your domestic assault charge diverted by having you attend for counselling, either privately, or through a court-approved program such as the PAR (Partner Assault Response) program. If accepted into the diversion program you will be able to go back home to your partner, if he or she consents, shortly after completing a few weeks of the program. In some instances, for example, where your lawyer arranges private counselling in advance of your court date, you may be able to go home as soon as you enroll in the program. Depending on the seriousness of the assault, and your progress in the program(s), once completed, you will either have your charges withdrawn, and be required to enter into a peace bond, or you will be required to plead guilty, but will avoid a criminal conviction.
Finding of guilt
If someone is found guilty of an assault in a domestic situation, the fact that the violence was against a family member or someone living with the abuser can be considered an “aggravating factor”. This means that when the court is deciding what the punishment should be, a judge might make the penalty harsher.
In the case of first-time offenders, and where there was no serious injury, the court may order probation with conditions such as not drinking alcohol and that the offender attend a counselling program. Where injury to the victim is significant, courts are more likely to impose a jail sentence.
Where an offender is being convicted of a second or subsequent indictable offence involving violence against an intimate partner (current or former spouse, common-law partner and dating partner), depending on the maximum term of imprisonment, the court may impose a sentence which exceeds that maximum term by another five, 10 or 14 years, or impose a life sentence.
If the accused is found guilty, the victim of domestic assault may be involved in the criminal process, for example by trying to get a longer sentence or having the abuser attend counselling, or preventing them from coming to the family home. The victim may also take other steps to separate themselves from the abuser, such as obtaining a restraining order.
After the trial
If you are found guilty at trial, you must obey all orders given to you by the court. If you do not, you may be punished with jail time up-to two years. A court may include several conditions in their order, such as that you:
- take anger management counselling, and show proof to your probation officer,
- not contact your spouse,
- not come within a certain distance of your spouse’s home,
- only contact your children in the way a family court order allows, and
- take part in substance abuse counselling, such as Alcoholics Anonymous.
The court will also state how long these conditions will last.
The penalties for assault vary widely. If you have been charged with a criminal offence, contact our preferred criminal defence experts:
You now haveoptions: